words of the Act, neither she, nor her husband, under Bitner v. Boone, supra, is competent to testify to any fact occuring in Finley's life time.

And it matters not that the facts to which the interested witnesses were called on to testify to may have been such to which Finley was an entire stranger, in which he was not a participant, or in which he was represented by an agent living and competent to testify and be present at the trial; Sutherland v. Ross, 140 Pa. 379. It is the occurrence of the fact in the life time of the decedent party, and not his participation in it that excludes the other party; Sutherland v. Ross, supra, and cases there cited which are full to the point; Parry v. Parry, 130 Pa. 94; Karns v. Tanner, 66 Pa. 297.

Neither is it material that Marshall, the execution creditor, indemnified Fin

to testify, nor would proof of his hand writing be admitted; Mackrel v. Wolf, 104 Pa. 421. If disinterested at the time of attestation, but becoming interested afterward, proof of his hand writing could be received; Hamilton v. Marsdon, 6 Binn. 45.

In this case, I think it plain that the subscribing witness was rendered incompetent to testify by Finley's death, and that proof of his hand writing could not have been received.

It is to be regretted that the plaintiff did not prove this part of her case by competent testimony and thus save the need of a new trial. It is to be observed that both the lessors were upon the stand and neither one was asked about the execution of the leases.

Rule for new trial made absolute.

ers of-Sale of.

States Circuit Court in Pennsylvania stands upon the Act of April 7, 1870.

A writ of fi. fia. issued from an United

Its execution is dependent upon that statute and there can be no stronger warrant for its execution upon the property of the corporation defendant, now in the hands of the receiver for this Commonwealth, upon the same property.

ley. The estate of the latter is still pri-Taylor v. Baltimore and Lehigh Railroad Co. marily liable, and is defending this suit; Railroads-Insolvent-Receiver - Powin fact must do so in order to make the indemnity available; and whether the indemnity shall prove fruitful may depend on a suit on the bond. It is obvious that Finley's estate has an interest in the suit, to which that of Mrs. Quickel is adverse; and it is that fact, and not the quantum of the interest, that excludes the adversely interested witness from testifying; Greenleaf Evid. 14th edit. p. 507. And if the bond of indemnity had the effect of removing Finley's interest, it could only do so by transferring it to Marshall by Finley's act in accepting the bond, and the witness would be as incompetent against Marshall as against Finley's administrator.

this court, than a fi fia. issued out of a court of

The estate and effects of the defendant cor

poration are in the custody of the court, and therefore the fi. fia. cannot be executed after the appointment of a receiver, without the con

sent of the court.

The court having taken charge of the property of the corporation, it is required to preserve as far as possible the equities of all parties in interest, including, of course, the creditors in this proceeding.

When a Court, upon a petition and without objection, granted leave to a U. S. Marshall to execute a writ of fi, fia. upon the property of a corporation of which it had appointed a receiver, such leave will be revoked upon petition of intervening creditors, showing that their claims would be jeopardized and their liens endangered by such execution.

It was of vital importance to the plain- | tiff's case to prove that the leases referred to were actually executed at the time they bear date, for they constitute her only title to a large part of the property for the levy and sale of which this suit is brought. If executed at that time, then her execution was a fact occurring in the The court will authorize a receiver of a raillife time of Finley, which cannot be es-road company to issue certificates for the purtablished by an adversely interested witness. It seemed at the trial that the competency of a subscribing witness rested It is the right and duty of the Court to keep on a somewhat different principle, but the road in safe and successful operation, while the supposed distinction is illusive and it is under the control of the Court. It must be unsubstantial. The rule at common law kept a going concern, for the benefit of the bondholders, creditors and all parties interested.

chase of a locomotive, where it is satisfied that the safe and convenient operation of the road. such purchase is imperatively demanded for

was that when a subscribing witness was The public good requires that railroads interested as well at the time of the exe-should be operated even at the expense of cution as at the trial, he was incompetent some detriment to private interests.

This is the only authority known to this court for the ordering and execution of the fi. fa. in question. For the Acts of Congress of 1789, 1790, 1828, and other similar acts, providing that the modes of process in circuit and district courts in suits at law shall be the same in each state as shall be allowed by the Supreme Court of such states, see U. S. R. S., I Stat. at Large 54; R. S., sec. 721, etc., and a review of said Acts of Congress in Riggs v. Johnson Co., 6 Wall. 166; Wayman v. Southard, 10 Wh. 1; U. S. v. Halstead, 10 Wh. 51.

As to the practice under said Acts, see the following cases; Wayman v. Southard, and U. S. v. Halstead, supra; Ross v. Duvall, 13 Pet. 45; U. S. v. Knight, 14 Pet. 301; Massengill v. Downs, 7 How. 760.

On May 18, 1893, petition of plaintiff was filed, setting forth the insolvency of the company, and praying for the appointment of a receiver and on same day Winfield J. Taylor was appointed receiver as prayed for. On May 31, 1893, petition of bondholders of the York and Peachbottom Railroad Co. to rescind the ́appointment of Taylor and praying for the appointment of the York Trust, Real Estate and Deposit Co. as such receiver. June 28, 1893, petition of Joseph M. Street for the removal of said Taylor filed. On January 29, 1894, leave was granted to the U. S. Marshall for the Eastern District of Pennsylvania to execute the writ of alias fi, fa. issued against the Baltimore and Lehigh Railroad Co. upon a judgment in the U. S. Circuit Court. March 1, 1894, petition for revocation of said permission to sell. After The Act of Congress of June 1, 1872, hearing the Court filed the following U. S. R. S., p. 174, sec. 916, is as folopinion: lows: "The party recovering a judgment. March 3, 1894. BITTENGER, J.-At in any common law case in any circuit or the time of the presentation of the bill district court shall be entitled to similar and petition of Alexander P. Colesberry, remedies upon the same, by execution or United States Marshall for the Eastern otherwise to reach the property of the District of Pennsylvania, the defendant corporation and Winfield J. Taylor, the receiver appointed by this court, appear ed by counsel and joined in the prayer for the making of the order and decree of the court authorizing the execution of the above mentioned writ. In the absence of objection, upon said bill and petition, and the assent of said defendant corporation, and the receiver, the court made the order and decree which the present intervening creditors and other creditors of like character now pray the court to suspend or modify or revoke.

The execution issued by the circuit court is part of the suit, and is the means employed for enforcing the judgment. We cannot inquire into the regularity and validity of either the judgment or the fieri facias. If either is to be attacked, the attack must be made in the court entering the judgment and issuing the execution. This is too well settled to require the citation of any authorities.

The first section of Act of Assembly of April 7, 1870, P. L. 58, Purdon's Digest, p. 359 pl. 118, provides for the levy and sale of any personal, mixed of real property, franchises and rights, of any corporation, upon a fieri facias, as therein provided.

judgment debtor as is now provided in like causes by the laws of the state in which said court is held, or by any laws hereafter enacted which may be adopted by such circuit or district court; and such court may from time to time, by general rules adopt such state laws as may, hereafter, be in place in such state, in relation to remedies upon judgments as aforesaid, by execution or otherwise."

The fieri facias, therefore, stands upon the Act of Assembly of April 7, 1870, above cited. Its execution is dependent upon that statute and there can be no stronger warrant for its execution upon the property of the corporation defendant, now in the hands of the receiver for this court, than a fi. fa. issued out of a court of this Commonwealth, upon the same property.

The creditors asking to intervene in this case and for a suspension or modification of the order and decree of the court allowing the execution of the fieri facias, upon examination of their bills and petitions appear to be creditors of the corporation defendant, before and since the appointment of the receiver. These intervening creditors aver that they had, and have liens upon the property, rolling stock, &c., of said corpora

tion, some of them prior in right to the It is ordered and decreed that the order lien of the mortgages. Some of the and decree of the court made on the 27th claims and demands are against the re- day of January, 1894, permitting and ceiver; and are similar to claims recog- authorizing Alexander P. Colesberry, nized by the court and ordered to be paid Esq., Marshall of the United States for by the receiver. It is further averred the Eastern District of Pennsylvania, to that their claims are jeopardized and execute the alias writ of fi. fa., recited in their liens are endangered by the impend- said order and decree, to wit: No. 15, ing sale on the fi. fa., and they assert that October Sessions, 1893, in the Circuit they are entitled to equitable relief, to Court of the United States, Eastern Disprevent irreparable injury. trict of Pennsylvania, upon the personal, real and mixed property, franchises and rights, of the said defendant corporation in the hands of Winfield J. Taylor, receiver, be and the same is hereby revoked. Motion for permission to purchase, &c. Stewart, Niles & Neff for motion. V. K. Keesey, contra.

The estate and effects of the defendant corporation are in the custody of the court, and therefore the fieri facias cannot be executed after the appointment of a receiver, without the consent of the court.

"After property has once passed into the hands of a receiver, no person can On March 26, 1894, a petition was acquire any lien upon it by judgment, filed for leave to purchase a locomotive execution, attachment, garnishment or for the use of the road. To this petition other process, without leave of the court objections were filed by one of the bondappointing the receiver"; Gluck & Beck- holders. er on Receivers of Corporations, p. 131, note I, and cases cited; 2 Weimer Penna. R. R. Law, pp. 819, 820, and cases cited in note; Wood's Rail Way Law, 16561657.

In Robinson v. The Allegheny and Great Western Railway Co., 66 Pa. 160, an execution levied upon land of a railroad company, in the hands of a receiver, was set aside by the court below, and the decision affirmed by the Supreme Court, because the land was in legal custody and could not be levied upon.

These decisions are based upon the principle that the property of a corporation after insolvency and the appointment of a receiver is in custody of the law and not subject to execution, for the reason that after the appointment of a receiver no creditor can obtain a preference over another creditor by virtue of any lien, or the fruits thereof.

April 3, 1894. BITTENGER, J.-Upon hearing this application and the affidavits filed in support thereof, it appears to our satisfaction that the purchase of an additional locomotive is imperatively demanded, for the safe and, convenient operation of that portion of the Baltimore and Lehigh R. R. situate in the county of York and State of Pennsylvania, in the legal custody of the Court; that the convenience of the patrons of the road as well as the safety and convenience of the traveling public urgently demand the acquisition of said additional motive power. It is the right and duty of the Court to keep the road in safe and successful operation, while it is under the control of the Court. It must be kept a going concern, for the benefit of the bondholders, creditors and all parties interested. The public is also concerned, "the public good requires that railroads should be operated even at the expense of some detriment to private interests: 20 Am. and Eng. Enc. of Law 428, 429, and cases

We think the creditors asking to intervene in this cause and praying for the relief specified in their bills are entitled to the equity invoked. The court hav-cited. ing taken charge of the property of the "So if, at the instance of any party corporation, is required to preserve as rightfully entitled thereto, the Court far as possible the equities of all parties should appoint a receiver of the property, in interest, including, of course, the cred- the same being railroad property, and itors in this proceeding.

Therefore on both authority and principles of equity, the order of the court allowing the execution of the fi. fa. in question must be revoked.

therefore under obligation to the public of continued operation, it, in the administration of such receivership, might rightfully contract debts necessary for the operation of the road, either for la

Zork Legal Record.

Vol. VII. THURSDAY, APRIL 19, 1894. No. 45. bor, supplies, or rentals, and make such expenses a prior lien on the property itself; Kneeland vs. Am. Loan Co., 136 U. S. 98.

And now, upon motion of Stewart, Niles & Neff, solicitors for the Receiver, and upon due consideration of the petition and affidavits filed, and after notice to all parties in interest, as directed by this Court on March 26, 1894, it is ordered and decreed, that Winfield J. Taylor, Receiver, be and he is hereby authorized to purchase a locomotive as prayed in said petition, and he is hereby authorized and empowered to issue to the vendor of such locomotive, or to any person who will furnish the money thereon for the purpose of making such purchase a certificate or certificates to the amount of $2,000, in the form following:

Balto. & Lehigh Railroad Company.
Balto. Forwarding & Railroad Company.
No.
Receiver's Certificate.

This is to certify that there is due to

or order

dollars

for (money borrowed, or locomotive furnished, as the case may be) by

and that upon payment of $2.00 costs by the defendant he would enter a non-suit; this was paid, but without further notice to defendant or her agent, judgment was rendered for the plaintiff and a transcript filed in the Prothonotary's office. HELD, to have been such fraud and misconduct on the part of the Justice as will lead the Court to set aside the proceedings.

After the payment of the costs by the defendant, according to the Justice's proposition, he had no jurisdiction to proceed further in the case.

Certiorari to proceedings before Geo. E. Sherwood, Esq.

This litigation first appeared before the Court in Simpson v. Musser, 6 YORK LEGAL RECORD 163, on a motion to strike off a judgment entered on a transcript from the Justice's docket, on the ground that the transcript showed that the summons was served more than one year after it was issued and judgment rendered and execution issued before service of judgment. The Court, BITTENGER, J., overruled the motion, holding that the conflicting dates in the transcript was doubtless a clerical error.

The cause next came up in the shape of a motion for a special allocatur for a certiorari to the proceedings before the Justice. This motion was granted. See Simpson v. Musser, No. 2, supra 74.

The certiorari having been allowed, exceptions were filed to the Alderman's proceedings.

Geo. B. Cole for exceptions.
H. S. McNair, contra.

to the Balto. & Lehigh Railroad Company and Balto. Forwarding and Railroad Company. This certificate is issued by the Receiver in pursuance of an order of the Court of Common Pleas of York County, Pennsylvania, sitting in March 17, 1894. BITTENGER, J.-The Equity, made on the 3rd day of April, exceptions filed, relating to the merits of 1894, and is payable out of any funds in the plaintiff's claim, cannot be effective his hands or that may come into his in setting aside the proceedings of the hands, applicable thereto, with interest Alderman. The evidence against the from date at the rate of six per cent. validity of the plaintiff's claim for propayable semi-annually at such date as fessional services to defendant, is theremay be fixed by the Receiver by public fore not admissible. It is apparent to the notice of thirty days, published in one court that the demand of the plaintiff is newspaper in the City of York, from without merit and that no judgment and after which date interest thereon will could have been recovered by him, had cease. The said certificate and money there been an appearance and a trial upsecured thereby to be a first and prior lien on the said road, rolling stock, franchises and income according to law.

on the merits. It is proven that the defendant was sick at the time of the bringing of the suit and that his illness continued for a long time thereafter. She did not appear, as is shown by the AlderAlderman-Certiorari to-Misconduct of man's return. The evidence further -Special allocatur.

Musser's Administrator v. Simpson.

In a suit before a Justice of the Peace, defendant's agent called upon the Justice and explained the nature of plaintiff's claim, whereupon the Justice said there was “nothing in it,"

shows that although an execution was issued, it was not served, with the knowledge of the defendant, on account of her severe illness.

This certiorari was especially allowed Road Commissioners v. Flickinger, 51 by the court, to prevent injustice on the Pa. 48. application of William I. Reisinger, adSharswood, J., in Fisher v. Nice, 60 ministrator of the estate of Julia Musser, Pa. 109, says, in reference to certiorari, with the will annexed, alleging that the "We never hear evidence to the merits of Alderman was without jurisdiction, and the case, but only what occurred before had practiced a trick and fraud in enter- the Alderman."

v. Rickert, 2 Dist. R. 195; Van Why v. Broigonder, 3 Kulp 202. In this latter case the proceedings were set aside because it was shown that when the defendant demanded a transcript for appeal, the justice informed him that the plaintiff

ing the judgment; and only for these. In Lacock v. White, 19 Pa. 495, on causes can these proceedings be set aside. page 498, it is said by Black, C. J., "So The exceptions go principally, to the a judgment obtained by any trick or misbehavior of the Alderman entering fraud will be reversed, if a certiorari be the judgment, and his want of jurisdic- taken within a reasonable time after it is tion. George E. Sherwood, Esq., since discovered." deceased, was the Alderman before whom See also Shell v. McConnell, I Pears. the proceedings were had. The evidence 27; McMullen v. Orr, 8 Phila. 342; Right clearly shows that after the suit was v. Ringler, 1 C. C. R. 156; Spidle v. brought the plaintiff in the certiorari, Robinson et al., 2 C. C. R., 642; Dunfee William I. Reisinger, acting for the de- v Vargason et al., 3 C. C. R. 207; Baker fendant, called at the Alderman's office, and made inquiry about the nature of the claim of the plaintiff in suit; that he was informed by the Alderman, that it was for professional services by the plaintiff, as physician to defendant; that said Reisinger informed the Alderman had withdrawn the suit. that the plaintiff had not treated the de- The payment of the costs, to wit, $2.00 fendant as a patient, but that the plaintiff by the defendant in this proceeding, to was seeking to recover the sum of $50.00, the Alderman, upon his promise and the amount of the claim in suit, for mak- agreement to discontinue the suit, was the ing an affidavit for the defendant in a end of said action. After such payment claim for pension, by her; that hereupon the Alderman was without jurisdiction the Alderman said there was "nothing in to proceed further, especially as no day it" and that upon the payment of $2.00 of hearing was appointed and notice costs, by the defendant, he would enter a thereof given to the defendant Julia Musnon suit; that said $2.00 was subsequent- ser. All the authorities are, that a judgly paid by defendant to the Alderman, ment entered under circumstances such through her daughter; and the suit was as these is invalid, and will be set aside. believed to be dismissed and ended, until on certiorari if the writ is issued in a a transcript was filed in the Prothono- reasonable time after notice of the judgtary's office on the-day of 189—;ment is received by the defendant. that the administrator did not know of These proceedings must therefore be the existence of the judgment until the set aside. granting of letters of administration to The proceedings before the Alderman him, which the record shows was on the are set aside and his judgment reversed. 26th day of August, 1892.

These facts, we understand, are undisputed. Certainly there is no evidence to the contrary. It is, however, earnestly contended, by the counsel for the plaintiff in the judgment recovered before the Alderman, that the evidence in support of | these facts is not admissible, and that the record returned is conclusive.

In this he is clearly mistaken. On hearings of a certiorari before the Court of Common Pleas, parol evidence is inadmissible, except to establish want of jurisdiction or corruption in the justice;

ORPHANS' COURT.

Schue's Estate.

Will-Conversion by-Interest of lega tees-Attachment creditor.

tate should be sold, and the proceeds to be diTestator by his will directed that his real esvided among his children. L., one of the legatees, after the making of the will, became indebted to the testator's estate in an amount largely in excess of his share under the will. HELD, that an attaching creditor of L.'s took nothing.

It requires no citation of authorities to es